Competent Advice & Privacy Settings

Rule 1.1 requires lawyers to provide clients with competent representation.  As nearly everyone who has read my blog twice knows, my position is that competence includes tech competence.

It’s also my position that a lawyer has a duty to provide a client with competent advice as to the impact, if any, that the client’s social media will have on a matter.

Let me be clear.

I often hear “but, Mike, I don’t want to have a Facebook account.”  I am not saying that you are required to.  Rather, I’m saying that you should know that your clients most likely do and, further, that information posted to a client’s Facebook account might impact the matter in which you are representing the client.

Here’s the latest.

Per the ABA Journal, a New York court ruled that the defense may discover photos that a personal injury plaintiff posted to Facebook and set as “private.”  The opinion is here.

The upshot:  it’s likely not competent to advise clients “don’t worry, as long as you keep it private, the other side won’t be able to access it.”

The case is one in which the plaintiff fell from a horse.  She sued, alleging that the defendant’s defective mounting of the stirrups caused the fall.  Among other things, plaintiff contends that her injuries prohibit her from many activities that she used to enjoy.

During her deposition, plaintiff testified that, prior to her fall, she had regularly posted photos to Facebook.  The defense requested access to the photos, which plaintiff had set to “private.”  Plaintiff declined to provide access.

The defense moved to compel production of the photos.  The defense argued that the photos bore on the credibility of plaintiff’s assertion that she had previously engaged in the activities that, now, she claimed she could not.

Plaintiff’s attorney countered that the single public photo on plaintiff’s Facebook account did not contradict her deposition testimony.  As such, the argument went, the defense had not established that access to the private portion of the account was likely to lead to the discovery of relevant information.

The trial court compelled production.  An appellate court modified the order to compel, limiting it only to photos that plaintiff intended to introduce at trial.  In the end, the New York Court of Appeals reinstated the trial court’s order. In so doing, the Court set out the various factors that a trial court should consider in response to a motion to compel production of information stored electronically on a social media platform.

I won’t go into the court’s decision in length.  Here are two key takeaways:

  1. As I’ve often said, electronically stored information is no different from any other information.  Or, in this case, photographs posted to Facebook are no different than photos that grandma slid behind plastic in that old, musty, album.
  2. A quote from the NY Court’s opinion (citations deleted):
    • “Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private.But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient
      privilege  But when a party commences an action, affirmatively placing
      a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

Remember: competence includes tech competence.

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